Exhibit 10.36
AGREEMENT FOR SALE OF REAL PROPERTY
This Agreement for Sale of Real Property (the "Agreement") is made this 13 day
of August, 1998 by and between United Air Lines, Inc., a Delaware corporation
with its mailing address at P. 0. Xxx 00000, Xxxxxxx, Xxxxxxxx 00000
(hereinafter, "United") and Focal Communications Corporation, a Delaware
corporation (hereinafter, "Purchaser").
RECITALS
A. United is the owner of the Property (as hereinafter defined), commonly
referred to as 0000 Xxxx Xxxxxxxxx Xxxx, Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000;
B. Purchaser desires to purchase, and United is willing to sell, the Property
upon and subject to the terms, provisions and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the foregoing Recitals and the
parti respective representations, warranties, conditions, agreements,
covenants, obligations and undertakings, and for other good and valuable
consideration, United agrees to sell the Property to Purchaser, and Purchaser
agrees to purchase the Property from United, in accordance with this Agreement,
as follows.
Purchase and Sale Provisions; Purchase Price
1.1 Sale of Proper1y. United will sell to Purchaser and Purchaser will purchase
from United, for the purchase price and on the terms and conditions set
forth in this Agreement (A) that certain real property, consisting of
approximately 13.14 acres of land commonly referred to as 0000 Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000; which is legally
described and generally depicted on Exhibit A annexed hereto (the "Real
Property"); (B) together with all buildings and improvements situated
thereon, presently consisting of a two-story glass and concrete building
containing approximately 52,000 square feet of space and a parking lot that
accommodates approximately 520 standard spaces (the "Improvements"); plus
(C) all water rights, mineral rights, development rights and air rights
owned by United, if any, and all appurtenances to the Real Property and
Improvements presently owned by United, if any, and (D) all personal
property situated in or on the Real Property, if any, which personal
property is described in the Xxxx for Sale, annexed to this Agreement as
Exhibit B. United does not represent that it owns any water rights, mineral
rights, air rights, or development rights in respect to the Property.
1.2 Purchase Price. Purchaser will pay to United as the total purchase price and
consideration for the Property the sum of $2,350,000.00 (the "Purchase
Price"), payable as follows:
A. Deposit. Concurrently with Purchaser's execution of this Agreement,
Purchaser will deliver the sum of $25,000 (the "Deposit") to Escrow Holder
(as provided in Section 3 below), in immediately available funds, for
deposit into an interest-bearing account (the "Escrow", as defined in
Section 2 below), to be held and disbursed as xxxxxxx money, subject to the
terms of this Agreement. In the event that Purchaser fails to deliver the
Deposit to Escrow Holder within five (5) business days of the execution of
this Agreement by Purchaser, then United may terminate this Agreement by
written notice to Purchaser and Escrow Holder, and thereupon the Agreement
will immediately terminate and be of no further force or effect.
B. Balance at Closing. At Closing, as defined in Section 8 of this
Agreement, Purchaser will pay to United an amount equal to the (i)
difference between the Purchase Price and the Deposit, (ii) plus or minus
prorations and other adjustments, but only to the extent that prorations
and adjustments are expressly authorized under this Agreement. The balance
payment at Closing will be made by cash or by certified cashier's check,
or by a wire transfer of immediately available federal funds.
2. Escrow; Closing Conditions
2.1 Escrow. No later than five (5) business days after the execution of this
Agreement by Purchaser and United, Purchaser and United will (A) open an escrow
(the "Escrow") with Chicago Title Insurance Company (the "Escrow Holder") and
(B) deliver to Escrow Holder a fully executed copy of this Agreement together
with an authorization to act in accordance with the terms of this Agreement. The
aforesaid authorization, together with Escrow Holder's standard provisions, will
become part of this Agreement, whether or not annexed hereto; provided, however,
that in the event of any conflict of inconsistency between such standard
provisions on the one hand and this Agreement on the other hand, the
inconsistency shall be resolved by giving precedence to this Agreement and this
Agreement will control. All charges associated with the Escrow, including the
Escrow Holder's fees, will be shared equally by Purchaser and United. Purchaser
will be entitled to all interest earned by the Deposit (subject, however, to the
provisions of Section 7 hereof), which interest, if any, will be disbursed to
Purchaser or credited to the Purchase Price at Closing
2.2 Title and Title Insurance
Page 2
A. Title Report; Approval of Title by Purchaser. United will employ reasonable
and diligent efforts to cause a preliminary report for the Property (the
"Title Report"), issued by Chicago Title Insurance Company ("Title
Insurer"), together with copies of all title documents referred in the
Title Report, to be delivered to Purchaser not later than thirty (30) days
following the execution of this Agreement by Purchaser and United.
Thereafter, Purchaser will have ten (10) business days from its receipt of
the Title Report to approve or disapprove in a writing directed to the
United any and all matters affecting title to the Property, other than the
Permitted Title Exceptions, as defined below; it being understood and
agreed that the failure of Purchaser to approve or disapprove any matter
affecting title by written notice to United within the aforesaid ten
(10)-day period will be deemed approval of such matter. Should Purchaser
disapprove any matter of title, United shall determine, within ten (10)
business days after United receives Purchaser's timely notice of
disapproval, whether United is willing or able, in United's reasonable
discretion, to cause such disapproved items to be eliminated prior to or at
Closing. If United determines (in United's reasonable discretion), within
such ten (10) business day period, that it is unwilling or unable to cause
certain disapproved items to be eliminated prior to or at Closing, United
shall give written notice to Purchaser and Escrow Holder identifying such
matters, and thereupon, if Purchaser is unwilling to withdraw or waive
Purchaser's disapproval of those matters, and provided that the matters
disapproved by Purchaser do not constitute Permitted Exceptions or other
matters that Purchaser, by the terms of this Agreement, does not have the
right to disapprove, Purchaser may terminate this Agreement consistently
with the terms and provisions hereof.
"Permitted Title Exceptions" will mean each and every one of the following: (i)
the standard printed exceptions set-forth on the policy of title insurers; (ii)
general and special taxes not then delinquent; (iii) any act(s) of Purchaser or
any party under Purchaser's control or direction, and right(s) of persons
claiming by, through or under Purchaser; (iv) an exception related to United's
continued use of a portion of the Property, in accordance with the rights
reserved by United pursuant to Section 5 hereof; (v) the existence of any areas
constituting "wetlands" or "special flood hazard" areas, if any; (vi) the terms
and provisions of any annexation of United's property (including the Property)
by the Village of Mount Prospect, including voluntary annexation pursuant to an
agreement between United and the Village of Mount Prospect, and (vii) any other
matter which the Purchaser shall approve in writing.
It is understood that failure of Purchaser to confirm in a writing directed
to the United its unwillingness to withdraw or waive previously disapproved
matters shall be deemed Purchaser's waiver or reversal (as the case may be) of
its prior disapprovals.
B. Title Commitment. Not later than thirty (30) days from the latest date on
which Purchaser was entitled to, but did not, register its disapproval or
rejection of the Title Report, as described in the preceding subsection
(A), United will deliver (or cause the Title Insurer to deliver) to
Purchaser, at United's cost and expense, a Title Commitment that conforms
in all material respects to the Title Report. The commitment will be for an
ALTA Owner's Title Insurance Policy for the Real Property, issued by the
Title Insurer in the amount of the Purchase Price, covering title to the
Real Property on or after the date hereof, showing United as owner of the
Real Property, subject only to the Permitted Title Exceptions.
C. Survey. United will employ diligent efforts to cause to be delivered to
Purchaser, at United's cost and expense, not later than thirty (30) days after
the execution of this Agreement by United and Purchaser, a current survey of the
Real Property, dated no earlier than July 15, 1998, prepared by a surveyor
licensed by the State of Illinois, which may be an Urban ALTA/ACSM Land Title
Survey meeting Minimum Standard Details Requirements and Accuracy Standards
adopted most recently by ALTA (hereinafter, the "Survey"). The Survey will
reflect and confirm the correct legal description of the Property, the location
of all Improvements, fences, easements, and rights of way. The Survey will show
no encroachments onto the Real Property from any adjacent property, no
encroachments by or from the Real Property onto any adjacent property, and no
violation of or encroachments upon any recorded building lines, restrictions or
easements affecting the Real Property. If the Survey discloses any such
encroachments or violation or any exception or matter indicating possible rights
of third parties other than the Permitted Title Exceptions, United will have not
more than fifteen (15) business days to cause the Title Insurer to issue its
endorsement insuring against damage caused by such encroachments or violations
or unpermitted exceptions, and provide evidence of the insurance to Purchaser;
provided, however, that in the case of any encroachments of the Real Property on
adjacent property owned by United, United will have the option to waive or
authorize the encroachment(s), if any. Purchaser shall be deemed to have
approved the Survey unless Purchaser disapproves any matter therein by written
notice to United within ten (10) business days.
D. Title and Title Insurance. At Closing, United will convey title to the
Real Property pursuant to a quit claim deed (the "Deed"), expressly subject to
the Permitted Exceptions. United will convey title to any personal property by a
Xxxx of Sale attached hereto as Exhibit B. At Closing, the title insurer will
issue through Escrow an ALTA Form B Owner's Title Insurance Company, subject
only to the Permitted Title Exceptions.
3. Prorations and Closing Costs
3.1 Prorations in General. Utility charges, fuels, and all other items of
accrued or prepaid expenses customarily prorated on the transfer of commercial
property in Xxxx County, Illinois shall be prorated on an accrual basis as of
the Closing Date, on the basis of most recent ascertainable amounts of, or other
reliable information in respect to, each such items of expense, and the net
credit to Purchaser or United will be paid in cash or as a credit against the
Purchase Price payable at Closing. Any items prorated on an estimated basis at
Closing shall be reprorated by the parties when and as the actual amount of such
item or expense becomes known, and any adjustment due to reproration shall be
effectuated no later than ten (10) days following final determination of the
amount in question.
3.2 Prorations of Real Estate Taxes. All real estate taxes and assessments
(general and special) will be prorated on a per diem basis and based on a
365-day year, as of the date of Closing, based on 100% of the most current
tax xxxx available for the Property. Taxes prorated on an estimated basis
on the Closing Date will be reprorated by the parties when the actual
amount of the tax(es) becomes known, and any adjustment due to reproration
will be effectuated not later than thirty (30) days following the final
determination of the tax and demand by the party to whom the credit or
adjustment is due. The parties' respective rights and obligations with
respect to reproration will survive Closing.
3.3 Title Costs. United will pay the premium for the owner's portion of the
title policy; the costs of procuring the Survey, and all state, county and
municipal transfer taxes. Purchaser shall pay the premium to the extended
coverage of the title policy and any endorsement requested by Purchaser,
and (C) the charges for recording the Deed.
3.4 Escrow. All charges associated with the Escrow, including the Escrow
Holder's fees, will be shared equally by United and Purchaser.
3.5 Professional Fees. Each party will be responsible for payment of the fees
and expenses of its respective legal counsel and any professional
adviser(s) that it may retain in connection with this Agreement and the
transactions contemplated hereby.
3.6 Delinquencies and Encumbrances. All expenses and charges insured in
connection with the discharge of delinquent taxes, if any, or any liens and
encumbrances on the Property (other than those created by or attributable
to Purchaser) will be paid by United.
3.7 Deed. Purchaser will pay any charges for recording the Deed to effect the
transfer of the Real Property.
3.8 Other Expenses. Any other Closing costs or charges shall be paid by the
party that customarily pays such costs or charges in Xxxx County, Illinois.
4. Condition of Property; Purchaser's Acknowledgments.
4.1 Properly to Be Sold "As Is." Purchaser shall accept the Property, if at
all, in its present condition and "as is." Purchaser acknowledges and
agrees that neither United, nor any of its agents have made, and United
hereby disclaims, any representations or warranties, express or implied,
concerning the physical, mechanical, geological, seismological or
environmental condition of the Property; the quality, nature or adequacy of
any utilities serving the Property; the present or future suitability of
the Property for Purchaser's business and intended uses(s), or any other
matter relating to the Property or its use, including, without limitation,
any implied warranties of merchantability or fitness for a particular use.
Purchaser additionally represents and warrants to United that Purchaser (A)
intends to rely solely on its independent inspection and investigation of
the Property; (B) United will not be obligated to make any alterations,
additions, improvements or repairs to the Property on account of this
Agreement, and that (C) subject to Purchaser's rights to investigate and
evaluate the Property pursuant to Section 4 of this Agreement, no patent or
latent physical condition of the Property, whether or not known or
discovered, shall affect, in whole or in part, either party's rights and
obligations under this Agreement.
4.2 Properly Reports. Purchaser acknowledges having received copies of the
following reports assessments and studies concerning the Property Phase I
Environmental Assessment and Focused Phase II dated 2/28/96 (collectively,
"Property Reports"). Purchaser understands and acknowledges that the
Property Reports were prepared by consultants or experts believed by United
to be qualified to provide the analysis therein contained, provided,
however, that United does not warrant the Property Reports' accuracy.
completeness, comprehensiveness, or scientific validity, and United does
not represent or warrant that the Property Reports are suitable for
Purchaser's purposes.
4.3 Right of Entry; Feasibility Period. On or before the expiration of the
period
commencing with the full execution of this Agreement and expiring on
Closing (the "Feasibility Period"). Purchaser, its employees, agents and
consultants will have the right to enter upon the Property, at Purchaser's
sole cost and expense, in order to inspect and investigate the Property and
to conduct any and all surveys, tests and studies that Purchaser deems
necessary or convenient, provided that Purchaser will restore any damage
done to the Property as result of any such tests, surveys or studies. Prior
to any entry upon the Property, Purchaser shall designate in writing to
United one or more representatives of Purchaser who shall accompany any of
such persons each time they enter upon the Property. Such entry or review
shall be made only after reasonable advance written notice to United by
Purchaser and at times reasonably acceptable to United with due regard for
United's ongoing use of the Property, or any facilities adjacent thereto.
Purchaser shall indemnify and defend United against and hold United and the
Property free and harmless from any and all claims, demands, liabilities,
costs, expenses, penalties, damages, losses and liens, including without
limitation, reasonable attorneys' fees, arising out of any such entry by
Purchaser or its representatives, employees, agents, contractors or
designees. The indemnity provided for herein shall survive the termination
of this Agreement and/or the close of the Escrow. In the event that, at any
time during the Feasibility Period, Purchaser, based on its investigation
and inspection determines that the Property is not acceptable, Purchaser
may terminate this Agreement by written notice to United, and thereupon,
both parties' obligation (other than United's obligation to return to
Purchaser the Deposit) shall terminate and be of no further force and
effect.
4.4 Purchaser's Investigation and Inspection. Purchaser represents, covenants
and warrants to United that Purchaser intends to rely solely on its
independent inspection and investigation of the Property in order to
determine whether the Property is in good order, repair, satisfactory
condition, and suited for Purchaser's intended use and purposes therefor.
Without limiting the generality of the foregoing, Purchaser represents and
covenants that, prior to the Closing, Purchaser will have (A) made its own
independent investigation of the Property and all other aspects of this
transaction, and will have relied entirely on such investigation and on the
advice of its independent consultant(s) (if any); (B) commissioned, engaged
and procured such tests, studies, investigations and consultants as they in
their respective reasonable, good faith judgment, deems appropriate or
advisable in connection with the Property and this transaction, and (C)
have reviewed all instruments, records and documents which Purchaser in its
reasonable, good faith judgment, deems appropriate or advisable to review
in connection with the Property, this Agreement and the transaction
contemplated hereby. All such inspections, tests and studies conducted by
Purchaser will be at Purchaser's sole cost, expense and risk. Purchaser's
failue to notify United in writing prior to the expiration of the
Feasibility Period of any substantial defects
in the Property identified by Purchaser's investigations shall constitute and be
deemed Purchaser's election to proceed to the Closing.
After any termination of this Agreement for whatever reason, Purchaser agrees
promptly to deliver and assign to United (to the extent that they are assignable
by Purchaser), without warranty and at no cost to United, copies of all reports.
notes, assessments, studies (including technical data) prepared or obtained by
Purchaser, its agents, contractors or consultants in connection with the
Property, including all land plans, maps, engineering studies, soil studies,
geological studies, environmental studies, test results, data and other
engineering information in Purchaser's possession or under Purchaser's control,
all of which shall become the property of the United.
4.5 Third Party Claims. Purchaser has been advised and understands that United
previously received an offer to purchase the Property from the Lincoln
Technical Institute ("Lincoln"). While United believes that no agreement
exists between United and Lincoln and that United is free to enter into
this Agreement and consummate the transactions called for hereunder,
Purchaser understands that claims may be asserted by Lincoln, its brokers,
affiliates or other entities. Accordingly, in the event that Lincoln,
Xxxxxxx Xxxxx Realty, Inc., and/or any of their respective principals or
affiliates ("Lincoln Parties") files a lawsuit or causes a lis pendens to
be placed upon the Property, (i) United will not be deemed in default of
this Agreement; (ii) United will have the right to terminate this Agreement
upon a thirty (30) days' written notice to the Purchaser, and (iii) in the
event that this Agreement is terminated, with the exception of United's
obligation to return to Purchaser any Deposit received by United pursuant
to this Agreement, neither party will have any further obligations
hereunder.
Without limiting or prejudice to United's rights under the preceding
paragraph, United agrees that, in the event that Purchaser, without fault
on its part, is named or subsequently joined as a party defendant in any
such litigation or proceeding brought by the Lincoln Parties or any one of
them, United shall indemnify and defend Purchaser in the litigation, but
only so long and to the extent that it may do so without retaining separate
counsel for Purchaser. Purchaser acknowledges and agrees that, in the event
that, for any reason whatsoever, Purchaser's representation by separate
counsel is required or desired, the cost thereof shall be the sole and
exclusive obligation of Purchaser.
5. United Reserved Rights
5.1 Reserved Space and Reserved Term. United reserves, and Purchaser hereby
recognizes, acknowledges to United, the right to occupy and use a portion
of the Property comprised of approximately 5,000 square feet and more
particularly described and delineated on Exhibit C hereto (the "Reserved
Space"), without charge, for a term commencing on Closing and continuing for
twenty-four (24) months therefrom ("Reserved Term"). Purchaser acknowledges that
Exhibit C may also list, identify and describe those items of personal property
that United will continue to maintain within the Reserved Space during the
Reserved Term, which personal property will not be included in any sale,
conveyance or other transfer of rights to Purchaser, but will remain the
property of United, and shall be removed by United at the expiration of the
Reserved Term.
5.2 Access and Permitted Use. During the Reserved Term, United shall have
unrestricted access to the Reserved Space and the right to use and occupy
same for and the personal property therein located for the conduct of
activities supporting or related to United's business as an airline
(including training and instruction); provided that United will cooperate
with Purchaser's reasonable security procedures. Both parties will employ
all reasonable and due care to avoid injury to persons and/or damage to
each other's property.
5.3 Waiver of Subrogation, Release of Claims
Purchaser and United agree to have all fire and extended coverage and material
damage insurance carried with respect to the Property, the property or any
portion of either endorsed with a clause which waives all rights of subrogation
that the insurer of one party might have against the other party. In the event
that the waiver of subrogation is available only upon payment of additional
premium, the party requesting the waiver of subrogation (not the party for whose
benefit the waiver of subrogation is requested) will bear the additional cost.
In the event that a party is unable to secure the issuance of the waiver of
subrogation, the party will immediately cause the other party to be named as an
additional insured on its fire and extended coverage policy.
Purchaser and United each hereby waive and release each other from each and
every claim for recovery for any loss or damage to the Property or the Reserved
Space, or Purchaser and United the contents of either, to the extent that such
loss or damage is covered by valid and collectible fire and extended coverage
insurance policies carried with respect to the Property or any portion thereof,
without regard to whether such loss or damage was occasioned by the negligence
of the other, its agents or employees.
5.4 Indemnification
A. Indemnification by United. Subject to the provisions for waiver of
subrogation rights and the releases associated therewith, United agrees to
indemnify and hold Purchaser harmless from any and all claims with respect to
bodily injury or property damage arising from United's occupancy of the Reserved
Space during the Reserved Term, but only to the extent caused by United's
negligence or the negligence of any of its agents or employees.
B. Indemnification by Purchaser. Subject to the provisions for waiver of
subrogation rights and the releases associated therewith, Purchaser agrees
to indemnify and hold United harmless from any and all claims with
respect to bodily injury or property damage arising in the course of
United's occupancy of the Reserved Space during the Reserved Term, but only
to the extent caused by Purchaser's negligence or the negligence of any of
its agents or employees.
Purchaser and United may, but shall not be required to, execute a lease to
govern United's continued occupancy of the Reserved Space.
6. United's Conditions to Closing. The obligations of United to consummate
the Closing will be subject to and conditioned upon (A) Purchaser's
execution of all Closing documents required in connection with the Closing;
and (B) Purchaser's satisfaction of the conditions and requirements
specified in Sections 1.2 and 4.2 of this Agreement, including specifically
payment in full of the Purchase Price.
7. Purchaser's Conditions to Closing. The obligations of Purchaser to
consummate the Closing will be subject to and conditioned upon approval by
the Purchaser's Board of Directors of all reports arising out of any
inspections, tests, studies or investigations undertaken by Purchaser or
supplied to Purchaser, including, but not limited to environmental reports.
8. Closing. Closing with respect to this Agreement and the of the sale of
Property shall mean (A) payment of the Purchase Price; execution and
delivery of the Deed and Xxxx of Sale to the Property, and (B) shall occur
within three (3) business days following the satisfaction or waiver of the
conditions set forth in Sections 5 and 6 of this Agreement, and in any
event, on or before August 30, 1998, unless said date is extended by the
mutual written agreement of the parties. Unless otherwise agreed to by the
parties, Closing will take place occur at the offices of the Title Insurer.
Purchaser specifically acknowledges that its obligation to close shall not
be waived, affected or diminished as a result of any change or proposed
change in any governmental law, ordinance, statute, rule or regulation
(including a change with an adverse impact on the transactions contemplated
by this Agreement).
In the event that United has satisfied all conditions to Closing, and
Purchaser declines, fails, refuses or is unable to close. United (in
addition to and without limiting any other
rights available to United under this Agreement and applicable law), will be
permitted to retain the Deposit, together with all interest earned thereon, as
liquidated damages and not as a penalty.
8.1 United's Deliveries
A. The Deed;
B. The Xxxx of Sale;
C. An ALTA Statement in form required by the Title Insurer.
8.2 Purchaser's Deliveries.
A. An ALTA Statement in form required by the Title Insurer;
B. The Purchase Price minus the Deposit
8.3 Concurrent Deliveries. United and Purchaser will jointly deposit in the
Escrow or deliver to each other at Closing an agreed proration statement,
and certificates complying with the provisions of State of Illinois, County
of Xxxx and local laws applicable to the determinations of transfer taxes.
9. Representations and Warranties of United
9.1 United is a corporation duly organized and in good standing under the laws
of the State of Delaware and is duly qualified to do business in and in
good standing under the laws of the State of Illinois. United has full
capacity, right, power and authority to execute, deliver and perform this
Agreement and all documents to be executed by United pursuant hereto, and
all required action and approvals therefor have been duly taken and
obtained. The individuals signing this Agreement and all other documents
executed or to be executed pursuant hereto on behalf of United are and
shall be duly authorized to sign the same on United's behalf and to bind
United thereto. This Agreement and all documents to be executed pursuant
hereto by United are and shall be binding upon and enforceable against
United in accordance with their respective terms, and the transactions
provided for in this Agreement, will not result in a breach of or
constitute a default or permit acceleration of maturity under any
indenture, mortgage, deed of trust, loan agreement or other agreement to
which United or the Property is subject or by which United or the Property
is bound.
9.2 United owns a marketable title to the Property.
9.3 To United's actual knowledge and belief, all documents provided to
Purchaser by United in connection with this transaction are accurate and
complete and United has no reason to believe that such documents are
misleading.
9.4 To United's actual knowledge and belief, (A) United has not been served or
threatened in connection with any litigation or other proceedings
respecting the Property or its use; (B) there are no pending or threatened
actions or proceedings by any municipal, county, state or federal
governmental authorities to enforce, terminate or suspend the effectiveness
of any license, permit or other governmental approval applicable to the
Property, and (C) except as expressly provided in this Agreement, the
Property is not in violation of any applicable law.
9.5 To the best of United's actual knowledge and belief, (A) there are no
unresolved disputes with any architect, designer, contractor or
subcontractor involved in the design, construction, retrofitting, repair or
maintenance of the Property concerning any defect in design, construction
or maintenance of the Property or any improvements thereto; (B) Hazardous
Substances (which shall mean hazardous substances or contaminants, as these
may be defined, regulated and proscribed under any applicable law, federal,
state or local) may be contained in or under the Property, as described in
the Property Reports; and (C) United has provided to Purchaser (and/or will
prior to Closing provide to Purchaser) any technical studies or reports
concerning the Property that may become available to United in addition to
the Property Reports; provided, however, that United does not represent or
warrant that any such studies or reports exist, are in United's possession,
or are suitable for Purchaser's purposes in connection with this Agreement.
9.6 No Implied Warranties. Except as expressly provided in this Agreement,
United makes no representation or warranty with respect to the Property or
any portion thereof, or otherwise in connection with the transaction
contemplated by this Agreement.
10. Representations and Warranties of Purchaser
10.1 Purchaser represents and warrants that it has sufficient equity funds or
available credit to satisfy payment of the Purchase Price at Closing.
10.2 Purchaser acknowledges that the Property may be annexed by the Village of
Mount Prospect, in the event that United and the Village of Mount Prospect
enter into an agreement for voluntary annexation of the parcel of land
owned by United, which includes the Property. United agrees to notify
Purchaser of all material development in connection with the negotiation of
said annexation.
10.3 Purchaser hereby represents and warrants to United that at the date of
execution hereof and at and as of the closing, Purchaser is a corporation
(A) validly
existing and in good standing under the laws of the state of its
incorporation and the State of Illinois, and (B) duly authorized, qualified
and licensed under any and all laws, ordinances, rules, regulations and
requirements of all governmental authorities to do all things required of
it under or in connection with this Agreement. This Agreement and all
agreements, instruments and documents herein provided to be executed or to
be caused to be executed by Purchaser are duly executed and binding on
Purchaser.
11. Possession. Subject to United's Reserved Rights, as set forth in Section 5
hereof, possession of the Property will be delivered to Purchaser on
Closing, concurrently with the delivery to Purchaser of (A) the Deed to the
Real Property, and (B) of the Xxxx of Sale with respect to the personal
property, if any.
12. Destruction or Damage
12.1 Casualty Over $50,000. In the event of an insured or uninsured casualty to
the Property prior to Closing having an estimated cost of repair which
equals or exceeds $50,000, Purchaser shall have the right to terminate this
Agreement by written notice to United within ten (10) business days after
Purchaser learns of such casualty and the estimated cost of repair thereof.
In the event Purchaser terminates this Agreement because of such casualty,
the Escrow will terminate. If Purchaser does not provide the aforesaid
notice, then this Agreement will remain in full force and effect; provided
that, at United's election, (A) the Purchase Price will be reduced by the
estimated cost of the repairs, as mutually agreed to by the parties, or (B)
at Closing, United will assign to Purchaser any insurance proceeds payable
with respect to such casualty and the right to make the insurance
adjustment with the insurance company, in which event the Purchase Price
will be reduced only by the amount of the applicable insurance deductible.
12.2 Casualty Under $50,000. In the event of an insured or uninsured casualty to
the Property prior to Closing having an estimated cost of repair which is
less than $50,000, this Agreement shall remain in full force and effect and
there shall be no reduction in the Purchase Price of the Property except
that, at United's election, (A) the Purchase Price will be reduced by the
estimated cost of the repairs, as mutually agreed to by the parties, or (B)
at Closing, United will assign to Purchaser any insurance proceeds payable
with respect to such casualty and the right to make the insurance
adjustment with the insurance company, in which event the Purchase Price
will be reduced only by the amount of the applicable insurance deductible.
12.3 Cost of Repair. For purposes of this Section 12, the phrase "estimated cost
of repair" shall mean an estimate obtained from a reputable independent
consultant
selected by United and reasonably approved by Purchasers, which approval
Purchaser agrees not to unreasonably withhold or delay.
12.4 Insurance. United, at its expense, will maintain a fire and extended
coverage insurance policy insuring the Property until Closing.
13. Condemnation. For the purposes of this Agreement, a taking by eminent
domain of a portion of the Property shall be deemed to affect a "material
part" if the taking exceeds ten percent (10%) of the land area of the Real
Property. It is hereby understood that in the event of a taking of a
"material part" of the Property, then Purchaser shall not be obligated to
proceed to the Closing hereunder. In the event of such a condemnation of
less than a "material part," Purchaser and United shall, nonetheless,
proceed to Closing without abatement of the Purchase Price, but United
shall assign to Purchaser all United's right to recover from the
condemning authority.
14. Brokers. United hereby represents and warrants to Purchaser that United
has not dealt with any broker or finder in respect to the transaction
contemplated hereby except for whose commissions shall be paid by United;
United hereby agrees to indemnify Purchaser for any claim for brokerage
commission or finder's fee asserted by a person, firm or corporation
claiming to have been engaged by United. Purchaser hereby represents and
warrants to United that Purchaser has not dealt with any broker or finder
in respect to the transaction contemplated hereby except for Mercantile
Realty Partners, L.L.C. and Xxxxx & Xxxxx and Purchaser hereby agrees to
indemnify United for any claim for brokerage commission or finder's fee
asserted by a person, firm or corporation other than such brokers
identified above claiming to have been engaged by Purchaser.
15. Defaults.
15.1 Default by United. If there is any default by United under this Agreement
prior to Closing, Purchaser may, at Purchaser's option, either (A) declare
this Agreement null and void and of no force and effect, and each party
shall thereupon be released from all obligations hereunder, or (B) bring
an action against United for direct damages. These shall be the sole
remedies of the Purchaser for any default by United at or prior to
Closing, and Purchaser shall not be entitled to, and hereby waives, all
rights to seek specific performance of this Agreement, or to file any
notice of lis pendens, attachment, lien or encumbrance, or to take any
other action that would impair United's ability to sell, transfer, or
otherwise freely deal with the Property.
15.2 Default by Purchaser. Upon breach by Purchaser of any covenant or
representation contained herein, United may, by notice to Purchaser, elect
to terminate this Agreement and retain the Deposit and liquidated damages
for such breach.
16. Release and Indemnification by Purchaser. If following Purchaser's
inspection of the Property, the parties proceed to Closing with respect to
the sale of the Property, Purchaser, for itself and for those claiming
through it, including its successors in interest, does hereby agree to
forever release, discharge, hold harmless, acquit, indemnify and defend
United, its parent company, subsidiaries, affiliates, successors in
interest, granted and assigns, and their respective officers, directors and
employees (collectively, "Released and Indemnified Parties") from and
against all losses, claims, demands, controversies, causes of action,
liens, damages, judgments, fines, penalties, costs and expenses, including
attorneys' fees (other as provided in Section 17.11 hereof), and from any
and all liability or claimed liability, that any of the Covered Parties may
incur or suffer as a result of or in connection with any (A) occurrence in,
on or at the Property after the date of Closing; and (B) any condition of
the Property as of the date of Closing.
Notwithstanding the foregoing, Purchaser's obligations and undertakings of
defense, hold harmless and indemnification under this Section 16 shall not
extend to any claim of a third party, including an enforcement action
brought by a governmental entity and irrespective of when initiated, to the
extent that such claim or proceeding, if any, is premised on or alleges a
noncompliance or violation of law, bodily injury or property damage
occurring or sustained prior to Closing and based on a Pre-Closing
Condition as defined below. A Pre-Closing Condition shall mean any
condition in, on, or within the Property which, on the date of Closing (i)
is defective, unsafe, or dangerous to life or limb; (ii) violates any
applicable law, including any environmental law relating to Hazardous
Substances, contamination or pollution of the environment, or (iii)
constitutes a Hazardous Substance within the meaning of any applicable law.
17. Miscellaneous
17.1 Entire Agreement; Amendments; Counterparts. This Agreement and Exhibits A
and B, whether or not annexed hereto contain all the agreements,
conditions, representations, warranties and understandings made between the
parties with respect to the subject matter hereof, and supersede any and
all prior agreements, proposals, solicitations, correspondence and other
agreements or understandings, written or oral. This Agreement may not be
changed, altered or modified in any respect except by an agreement in
writing signed by the duly authorized representative of both parties.
17.2 Construction; Headings. This Agreement will be construed on the basis that
both parties contributed substantially to its formation and preparation; no
inference or presumption shall be accorded in favor of or against either
party, and any uncertainty or ambiguity shall not be interpreted against
any one party. The headings contained in this Agreement are provided for
convenient reference
only, and are not intended to define, alter or limit the scope of any
provision of this Agreement.
17.3 Partial Invalidity. In the event that any provision of this Agreement will
be deemed invalid, unenforceable or illegal, all remaining provisions of
this Agreement will remain in full force and effect, provided, however,
that if, in such event, the purpose of this Agreement is defeated,
significantly compromised or frustrated, the parties shall use their
respective good faith efforts to negotiate the reformation or modification
of this Agreement, as appropriate, in order to carry out their intent. In
the event that the parties are unable to agree on a mutually acceptable
reformation or modification after ten (10) business days of good faith
negotiations, either party may terminate this Agreement by a written notice
to the other party.
17.4 No Implied Waiver. The failure or delay on the part of either party to
enforce or exercise any of the rights set forth in this Agreement shall not
constitute a waiver of such party's right to demand strict compliance with
the terms of this Agreement, and the waiver by either party of any default
or breach by the other party of any provision of this Agreement shall not
operate as, or be deemed to operate as, a waiver of any subsequent or other
default or breach.
17.5 No Third Party Beneficiaries. Nothing in this Agreement is intended to
confer any rights to, or impose any obligations on, any person not a party
hereto or the parties' respective duly authorized successors and assigns.
Nothing in this Agreement is intended to relieve, discharge or limit the
obligation or liability of any person to the parties or either one of them.
17.6 No Consequential Damages. It is acknowledged and agreed, that neither party
shall be liable to the other party, and each party expressly waives,
releases and relinquishes any and all claims against the other party for
any indirect, special incidental or consequential damages, including,
without limitation, lost revenues, lost revenue opportunities, lost profits
or losses of prospective economic advantage, resulting from United's
performance or failure to perform under this Agreement.
17.7 Rights Personal to Parties; No Assignment. It is acknowledged and expressly
agreed that the rights conferred hereunder are personal to the parties
hereto, and may not be assigned or transferred, in whole or in part, to a
third party hereto (including any subsidiary, affiliate or parent
corporation of either party), without the prior written consent of the
other party, which consent may be withheld in each party's absolute
discretion, and any attempted assignment or other transfer of this
Agreement, in whole or in part, shall be null and void and of no force and
effect; provided, however, that all rights specified hereunder shall be
binding on
and shall inure to the benefit of the parties' respective successors,
including trustees and receivers.
17.8 Governing Law. This Agreement and any action in tort arising in connection
with this Agreement shall be governed, construed, interpreted and enforced
in accordance with the laws of the State of Illinois, without regard to
any choice of law principles.
17.9 Time of the Essence. The parties acknowledge and agree that time is of the
essence in the performance of each and every covenants, obligation,
requirement and condition of this Agreement.
17.10 Notices. Each notice or other communication given pursuant to this
Agreement shall be in writing, and shall be delivered in person to the
party to whom it is addressed, or sent by (A) United States registered or
certified mail, return receipt requested; (B) a nationally recognized
overnight courier service, or (C) by facsimile transmission. Mailed
notices shall be postage prepaid, and all notices shall be addressed as
follows.
To United:
If sent by U.S. mail:
United Air Lines, Inc.
P. 0. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Attention: Vice President
Properties and Facilities
With a copy to: General Counsel and Secretary
If sent by overnight courier or delivered by messenger:
United Air Lines, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
To Purchaser:
If sent by U.S. mail:
Focal Communications Corporation
0000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, Xxxxxxxx 00000
Attention: Director of Real Estate
With a copy to:
Focal Communications Corporation
0000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, Xxxxxxxx 00000
Attention: Executive Vice President
If sent by overnight courier or delivered by messenger:
Focal Communications Corporation
0000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, Xxxxxxxx 00000
Attention: Director of Real Estate
With a copy to:
Focal Communications Corporation
0000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, Xxxxxxxx 00000
Attention: Executive Vice President
All notices shall be effective upon receipt, or upon attempted delivery where
delivery is refused or mail is unclaimed. The addresses and addressees
designated in this Section 16.10 may be changed by written notice given to the
other party.
17.11 Attorneys' Fees. Each party shall bear and be responsible for, without
right of reimbursement from the other party, all attorney's fees and other
costs incurred in connection with the preparation, negotiation, execution,
and performance of this Agreement. In addition, in the event of any
controversy, claim or dispute to this Agreement, the Deed, Xxxx of Sale or
the Property, or in the event that any action or proceeding shall be brought
by either party in order to enforce the provision of this Agreement, or to
collect damages as a result of the breach of any of the provisions of this
Agreement, the prevailing party shall be entitled to recover from the
nonprevailing party all reasonable costs incurred in connection therewith,
including attorneys' fees.
17.12 Interpretation. In this Agreement, unless otherwise expressly indicated
or except where the context clearly requires otherwise:
A. The terms "hereto," "herein", "hereof," "hereunder" or any terms of
similar meaning or import will be deemed to refer to this Agreement; the
term "hereafter" will mean after, and the term "heretofore" will mean
before the date of execution and delivery of this Agreement.
B. Any reference to this Agreement will be read and interpreted to mean and
include all supplements, exhibits, schedules and other attachments hereto.
C. Terms importing the singular will be deemed also mean and refer to the
plural and vice versa, and the use of any gender will be deemed to include
all genders (words of the masculine gender will mean and include
correlative words of the feminine and neuter genders), all as the context
may require.
D. The phrase "and/or" will mean that any one of the referenced alternatives
or combinations thereof will suffice or may be applicable.
E. The words "include" or "including" will not be construed as words of
limitation, but will be construed as if followed by the phrase "but not
limited to."
F. Terms "persons" will include corporations, partnerships, trusts, firms,
associations, trusts and other legal entities, including public bodies, as well
as natural persons;
G. Verbs used in the present tense will include the future tense, as the
context may require.
H. Whenever, under the terms of this Agreement, the time for the performance
of a covenant or condition, including a payment, falls on a Saturday,
Sunday or an officially recognized holiday, such time for performance
will be extended to the next business day. Otherwise, all references to
"days" that are not otherwise qualified or described will mean calendar
days.
I. All references to the knowledge or actual knowledge of United shall mean
the knowledge of the following United employees: Xxxxx Xxxxx, Vice
President-Properties and Facilities; Xxxxxxx Xxxxxxxx, Regional
Manager-Airport Affairs, and Xxx Xxxxxxx, Senior Counsel.
17.13 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
17.14 No Offer. Submission of this Agreement to Purchaser for examination or
signature is not effective as an agreement to sell the Property or
otherwise until execution by and delivery to Purchaser and United of an
original of this Agreement.
WHEREFORE, IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective, duly authorized representatives.
UNITED:
UNITED AIR LINES, INC.
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Date:
-----------------------
PURCHASER:
FOCAL COMMUNICATIONS CORPORATION
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Date:
-----------------------
Exhibit B
All personal Property currently located on the Property, except for any personal
property located in the Reserved Space.
Exhibit C
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